Wednesday, March 24, 2004
The case against Willard Brown appears to be a 500-trillion-to-1 slam dunk for prosecutors.
The only thing left to decide, seemingly, was what punishment should be pursued against Brown, who was identified through DNA testing and charged last December in the 1984 rape and murder of Deborah Sykes.
But Tom Keith, the Forsyth County district attorney, said that the case is not that simple. "There's no such thing as a slam-dunk case," he said.
Prosecutors have still not decided whether to pursue the death penalty against Brown, whose arrest led to the exoneration of Darryl Hunt in the crime.
Hunt had served 18 years in prison after twice being convicted of murder. He originally faced the death penalty but was given a life sentence by a jury.
Brown has not been scheduled to appear in court on the charges, and Keith said he is not sure when that will happen.
Keith said he has not seen police reports from the Brown case. He said he won't make a decision on the death penalty until he and his staff can review the reports and other evidence. It can take the police as long as six months to issue those reports, he said.
Once prosecutors have made their decision, Brown will appear for what is called a Rule 24 hearing, at which a judge will hear arguments from both sides as to whether the case warrants the death penalty, Keith said.
He said he wants to check the laws from 1984 to determine how long a sentence Brown could be given if he pleads guilty. Since 2001, prosecutors have been given discretion to take life-without-parole sentences in return for guilty pleas that would avoid the death penalty. Because the crime predates the law, a life-without-parole sentence would probably not be possible in this case.
In addition, Keith said he has not discussed the case with Sykes' family to hear what it would like prosecutors to do.
There is also the question of whether Brown has an IQ of less than 70, which would bar him from being executed, or whether there are other significant mental-health issues that could make him sympathetic to a jury.
Brown's attorney, Pete Clary, Forsyth County's chief public defender, declined to comment for this story.
The DNA tests show that there is a 1-in-500 trillion chance that the samples found on Sykes came from anyone other than Brown. However, there may still be problems bringing the 20-year-old murder case to trial and getting a death-penalty conviction.
James Coleman, a law professor at Duke University, said that juries are often reluctant to base their decision solely on scientific evidence.
"We saw that in the O.J. Simpson case, where there was overwhelming scientific evidence," Coleman said. "The question is 'What do they have to corroborate that.'"
There does appear to be some corroborating evidence against Brown, Coleman said.
For example, investigators testified last month at the hearing where Hunt was exonerated that Brown had confessed to the crime.
But other evidence might be at issue, including the past eyewitnesses, Coleman said.
"The problem is they identified the wrong guy," he said. Jurors may be reluctant to believe their testimony knowing that they had placed Hunt at the scene of the crime in his two trials.
Gretchen Engel, an attorney with the Center for Death Penalty Litigation in Durham, said another reason that prosecutors should think twice about pursuing the death penalty against Brown is the public tension that has been tied to the case since Hunt was charged.
The death penalty, with its lengthy appeals process, would mean that the case would be back in the news every few years, which could make it harder for the community to move past the wrongful conviction of Hunt, she said.
Keith said his job is not to consider the healing process of the community but to try cases based on the facts.
He did acknowledge that there could be problems in pursuing the death penalty against Brown, mostly because of the age of the case.
Some evidence could be lost, or it may be difficult to establish who has had control of key pieces of evidence during the 20 years that the case has gone on. That, in turn, could open the evidence up to challenges by Brown's defense, Keith said.
Keith did not request the death penalty in another case almost as old as the Sykes murder.
Patricia Ann Bishoff was killed in 1985, and the case remained unsolved for 17 years until a witness came forward in 2002.
One defendant has pleaded guilty in connection with Bishoff's death, and two other men are awaiting trial.
Keith said he is also worried that the General Assembly may pass a moratorium on executions, which could make it difficult for prosecutors to know how to proceed with their capital cases.
The N.C. Senate approved a moratorium last year, and the House could take it up as early as this spring.
"It's still very early," Keith said.
• Paul Garber can be reached at 727-7302 or at pgarber@wsjournal.com